(Cross-posted on Just Security)
Here’s a list of questions I hope will be asked of Judge Neil Gorsuch, the President’s nominee to fill the vacant Supreme Court seat, at his Senate confirmation hearing. Most of these questions are related to security, individual rights, executive authority and requirements that the President serve without conflicts of interest. That these are necessary questions raises a larger question about whether, to paraphrase Benjamin Franklin, we will keep the Constitutional republic our Founders entrusted to us, as the President’s first weeks in power raise serious doubts about whether he intends to honor the law in all of these areas. The hearings come at a provident time and provide a much-needed opportunity to have a vigorous debate on Presidential power, made more meaningful by the fact that a Justice Gorsuch will likely join a Court that will make historic decisions on Executive authority.
1. Is it inappropriate for the President to demean and attempt to subvert the authority of judges who rule against him? (Credit for this question goes to Steve Vladeck who suggested this in the wake of the President’s reaction to Judge Robart’s stay of the Executive Order on travel). Are you troubled that the President has pre-emptively blamed federal judges for terrorist attacks because they have ruled against him?
2. There are reports that federal officials are refusing to comply with federal court orders staying the President’s executive order on immigration and travel. Is it permissible for the President or any Executive Branch employee to refuse to comply with an order from a federal court? If not, what should the Supreme Court do if called on to decide whether the President or the Executive Branch must comply with the Court order, assuming that the Supreme Court has upheld or declined to rule on the substance of the lower court ruling? If so, what is the legal basis for allowing the President or other executive branch officer to defy the courts? Would not this place the President above the law and destroy Article III Constitutional limits on Executive power?
3. Millions of Americans exercised their First Amendment freedom of speech and assembly by participating in protests on the day after President Trump was inaugurated. Tens of thousands have protested since. Under what circumstances, if any, may the President limit the exercise of these First Amendment rights? Under what circumstances, if any, may state or local governments limit the exercise of these First Amendment rights? Do you agree that neither the President nor state or local governments may impose such restrictions on First Amendment rights that would effectively eliminate those rights or restrict them so severely as to significantly diminish the sought impact of the speech—for example, by relegating the location of permissible protests to undesirable places with low public visibility or capacity for few participants, or by restricting the time within which those rights can be exercised?
4. Do you believe that the First Amendment could be construed to protect the media or members of the public from government words or actions, including words or actions from the President, that generate hostility or violence so great as to interfere with First Amendment rights?
5. Do you agree with the Supreme Court’s decision in Citizens United v. FEC and will you commit to upholding that decision? If not, would you overturn the decision? If you would uphold Citizens’ United, and in your answers to questions about media and individual First Amendment rights you supported limits in those rights, how do you justify imposing limits on the rights of media and individuals to speak out while large and wealthy corporations have unlimited speech rights under Citizens’ United? Doesn’t this combination bias electoral politics in the favor of wealthy organizations and against individuals and the media?
6. Is it unconstitutional for the President or any part of the U.S. government to require Muslim U.S. citizens and/or Muslim legal residents as a class to register or otherwise identify their religion with the government for recording? If not, under what legal authority and what circumstances would this be constitutional?
7. Is it unconstitutional for the President or any part of the U.S. government to hold in detention Muslim U.S. citizens and/or Muslim legal residents solely on the basis religious affiliation (that is to say, without any evidence of criminal activity planned or committed by the detainee)? If not, under what legal authority and what circumstances would such detention be constitutional?
8. Is the Supreme Court decision in Korematsu v. United States still good law and valid precedent for upholding legal detention? If your answer is yes, are you not troubled that the internment of Japanese Americans upheld in Korematsu is widely viewed (including by the dissenting Justices in Korematsu) as a shameful, racist episode in U.S. history that violated our commitment to human and civil rights and that the decision is considered by many as one of the worst in Supreme Court history?
9. Do you agree with the Supreme Court decision in Obergefell v. Hodges that there is a fundamental right to same sex marriage and will you commit to upholding that decision? If not, would you overturn Obergefell?
10. The Oxford Dictionary definition of the word “emolument” includes “a salary, fee, or profit.” Would this definition apply to the word emolument for purposes of interpreting the Emoluments Clause in the Constitution? If not, why not, and what would that word mean for purposes of applying the Clause?
11. Do you agree that the purpose of the Emolument Clause is to prevent the President from receiving financial incentives from foreign countries that could bias the President toward those countries and against the interests of the United States or its citizens? Given that the President’s business holdings potentially could result in millions of dollars of profit from foreign countries, isn’t it clear that his refusal to divest the business or place it in a blind trust violates the Emolument Clause? If not, why not? If accepting small gifts violates the Clause, how can generation of millions of dollars comply with the Clause? Are you not concerned that nations with interests adverse to the US and with great wealth could provide President Trump with millions of dollars of business and thereby attempt to influence his decisions?
12. If the purpose of the Emoluments Clause is to ensure that the President is not biased by receipt of incentives from foreign countries, doesn’t any U.S. citizen have standing to sue for violation of the Act? Put differently, isn’t a violation of the Clause automatically an injury to all U.S. citizens because the nation would no longer have a president free from bias or foreign influence? Aren’t the dangers of a president biased towards foreign interests so grave that universal standing for U.S. citizens is necessary under the Emoluments Clause? Is not this bias against U.S. interests in favor of foreign interests particularly acute in the case of President Trump given the staggering amount of profit that he can and likely will receive from foreign states? For example, isn’t the very purpose of the Clause to prevent things like a president opening or operating a hotel and receiving millions of dollars from countries with interests adverse to the U.S., such as Russia and China?
13. In Clinton v. Jones the Supreme Court ruled that the President is not immune from civil suits for acts done before taking office and unrelated to the office. Do you agree with that ruling and will you commit to voting to uphold it? If not, will you overturn it?
14. Does the President or the federal government have the power to require state and local law enforcement and police to enforce federal laws or regulations on immigration? If so, what is the legal basis for this power? Wouldn’t this violate the 10th Amendment’s reservation of rights to states?
15. Can the President or the federal government require state and local governments to enforce federal immigration laws or regulations on immigration as a condition for receiving federal funding or grants (other than funding that would go to the enforcement itself)? If so, what is the legal basis for this power? Wouldn’t this violate the 10th Amendment’s reservation of rights to states?
16. Does an immigration law or policy which explicitly establishes preferential treatment on the basis of religion violate the First Amendment’s Establishment Clause? If not, why not?
17. Is an immigration law or policy which denies visa holders the right to be in the United States in contravention of their visas subject to the due process clause of the Fourteenth Amendment? In other words, must any such restrictions or deprivations of current visa rights require due process?
18. Recognizing that ultimate determination of this question would depend on the facts of a given case, do you believe that it is possible for an immigration law or policy that has a disparate impact in terms of the religion of those excluded to violate the Establishment Clause of the First Amendment? For example, would an immigration law that established an unconditional ban on Israeli citizens from coming to the U.S. violate the Establishment Clause because a very high percentage of those excluded are Jewish?
19. The President recently suggested on Twitter that federal funding be withheld from the University of California at Berkeley following the University’s decision to cancel a talk by right-wing speaker Milo Yiannopoulos due to violent protests that occurred outside the campus venue where he was slated to speak. Is it legally permissible for the President or the Federal government to withhold funding that has been granted from a University, or any federal recipient of funding, for actions taken by the University that are not dependent on or related to the funding? If so, what is the legal authority for this, and under what circumstances would withholding the funding be permissible. What limits does the law impose on this authority to withhold funding? In the case of state and local governmental entities, would not this withholding of federal funds violate the 10th Amendment?
20. Does the President have the legal authority to take action or enact policies which eliminate or reduce statutory immigration rights, or those established by treaties adopted by the U.S. in a manner that establishes such treaties as U.S. law, without congressional approval?
21. In Hamdan v. Rumsfeld, the Court held that Common Article III of the Geneva Conventions applied to the U.S. Will you commit to uphold this ruling from Hamdan? If not, why not?
22. The United States has been using military force in its conflict against the Islamic State since August of 2014. Congress has not passed legislation specifically authorizing this use of force. Does the President have the power to continue to use force against the Islamic State without Congressional approval or authorization? If your answer is yes, what is the legal basis for the President’s use of force against the Islamic State?
23. The previous administration took the position that the 2001 Authorization to Use Military Force (AUMF) served as the legal basis for using force against the Islamic State. The 2001 AUMF authorized force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” The Islamic State did not originate until years later. Does the 2001 AUMF authorize force against the Islamic State? If so, how can a statute directed at participants in the September 11 attacks and supporters authorize use of force against a terrorist group that did not exist until after the attacks and had neither responsibility for them or relationship with those who conducted the attacks and their supporters?
24. It is generally accepted that Article II of the Constitution provides the President with the authority to use force without congressional authorization so long as the use of force is limited and the President complies with the requirements of the War Powers Act. In terms of the limitations for this authority, what are the categories you would consider in determining whether a use of force is limited enough to fall within the President’s Article II authority, and for each category what would be the outer limit beyond which the President would require congressional approval or authorization?
Given the near certainty that the nominee will decline to answer questions to avoid pre-determining cases that may come before him, or duck a question because the answer would depend on the specific facts presented by an actual case, here is my dodgeball catch-all follow-up series:
• OK then—fair enough if you don’t want to pre-decide cases on issues that may come before you. Have you had occasion to think about this legal question or do reading and research on it? (If the answer is no, the questioner should express shocked disbelief given the gravity and relevance of these issues).
• Without committing yourself to a decision one way or another if a case on this issue comes before you, and recognizing that under the specific facts of a given case you may well reach a different conclusion, as you sit here today, how would you answer this question?
• Whether or not you can tell me how you would decide the issue, can you tell me what factors or facts you would consider in reaching your decision and why you consider each to be significant in your analysis? Would any of these factors weigh more heavily than others?